Arguments over the Ministerial Code and the role of the Independent Adviser on Ministers’ Interests are far from over

Recently announced changes to the Ministerial Code demonstrate that the government is unlikely to place it on a statutory basis any time soon. Sir Peter Riddell argues that although some of the revisions are sensible, the new Code demonstrates the government’s determination to assert the privileges of the executive and reflects an increasingly presidential view of the Prime Minister’s role.

The Independent Adviser on Ministers’ Interests is neither fully independent nor entirely an adviser. His hybrid, anomalous position reflects wider tensions between ministers and advisers on standards which have been exacerbated under the current administration – and are unlikely to change after Boris Johnson won a confidence vote on Monday to ensure his survival as Conservative leader and Prime Minister. These tensions have reflected an increasing assertion by the Prime Minister of a presidential view of his role based on the mandate of the ballot box, as distinct from accountability to parliament. The limited changes in the latest version of the Ministerial Code only go a small way to address these concerns.

The public arguments over the Ministerial Code and the Independent Adviser have only partly been caused by the casual attitude of the current Prime Minister towards standards in public life, as highlighted by the repeated frustrations expressed by Lord (Christopher) Geidt, the current Adviser. That has led to widely supported calls from the Committee on Standards in Public Life (CSPL) for a strengthening of his powers.

As with so much in standards in public life, the evolution of the Ministerial Code (originally the more prosaic Questions of Procedure for Ministers) and the creation of the Adviser’s role in 2006 have been the result of a series of allegations and scandals. These exposed the limitations of previous informal understandings and conventions and underlined the need for more formal codes of conduct and independent investigation. The Ministerial Code combines operational guidance about how business in government should be conducted and a list of expectations about ministers’ ethical behaviour in office, based on the seven principles of public life (also known as the Nolan principles).

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Partygate illustrates the fundamental constitutional responsibility of government MPs

Boris Johnson and his Chancellor have now been fined for breaking lockdown restrictions. Both have misled parliament over Downing Street parties. These are clear breaches of the Ministerial Code, which should lead to resignation. If the PM refuses to police the Code, says Meg Russell, that constitutional responsibility rests with MPs. A failure to exercise it would seriously undermine both the integrity of, and public trust in, the democratic system.

The Prime Minister and Chancellor of the Exchequer have been issued fixed penalty notices for breaching COVID-19 lockdown rules over parties in Downing Street. This means that they have broken the Ministerial Code on two counts. Paragraph 1.3 emphasises ‘the overarching duty on Ministers to comply with the law and to protect the integrity of public life’. But the police have concluded that the law has been broken. Paragraph 1.3c of the Code then states that:

It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.

But it has been clear for some time that Johnson breached this rule, by repeatedly insisting in the House of Commons that all regulations were followed, and denying knowledge of Downing Street parties, when it subsequently emerged that he had attended such gatherings. Multiple sources have catalogued these denials. Rishi Sunak also said on the parliamentary record that he ‘did not attend any parties’.

But the final line of paragraph 1.3c is the rub. While both of these forms of breach would normally be considered resigning matters, the ultimate keeper of the Code is the Prime Minister himself. He has already faced down criticism over failing to uphold it in the case of bullying allegations against Home Secretary Priti Patel, which led to the resignation of the Independent Adviser on Ministers’ Interests. Both Johnson and Sunak have insisted that they are not going to resign, indicating that the Prime Minister is once again setting aside the Code – this time over multiple breaches, which are highly publicly salient.

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Improving standards of conduct in public life

In November, the Constitution Unit hosted Lord (Jonathan) Evans, Chair of the Committee on Standards in Public Life, to discuss its new report, ‘Upholding Standards in Public Life’. Lisa James summarises the discussion.

In November, the Committee on Standards in Public Life (CSPL) published its report Upholding Standards in Public Life, the result of a year-long review of the system of standards bodies regulating the UK government. Following the report’s publication, the Constitution Unit hosted a webinar with CSPL’s Chair, Lord (Jonathan) Evans, to discuss the findings. The event also followed closely behind the parliamentary standards scandal over then-MP Owen Paterson, in which the government was forced to U-turn after trying to overturn the House of Commons Standards Committee’s findings against Paterson on allegations of inappropriate lobbying.

The summary below reflects Lord Evans’ remarks and conversation with the Unit’s Director, Meg Russell. A full video of the event, including the audience Q&A, is available on our YouTube page.

Lord Evans began by introducing CSPL and the reasoning behind the Standards Matter 2 inquiry. CSPL is an independent advisory body, with an independent majority and a minority of party-political members. Established by then Prime Minister John Major in the wake of the cash-for-questions scandal, it was originally conceived as an ‘ethical workshop’ for the public sector. Continuing the metaphor, Lord Evans suggested that CSPL’s recent inquiry might be seen as an ‘MOT’ of the regulatory system for government: a wide-ranging review of the whole system, in an attempt to identify problems and suggest improvements. Focusing on ethical standards, the committee did not recommend radical change, but identified a number of moderate, ‘common-sense’ reforms to strengthen the system. These fell into three broad categories: stronger rules; greater independence for regulators; and a stronger compliance culture within government.

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Reforming the mayoral voting system: do ministers’ arguments stack up?

This week, the Elections Bill was amended to replace the Supplementary Vote (SV) system used for electing mayors and police and crime commissioners (PCCs) in England and Wales with First Past the Post (FPTP). But, as Alan Renwick and Alejandro Castillo-Powell argue, the arguments put forth by ministers are not as convincing as they might at first appear.

Ministers plan to replace the Supplementary Vote (SV) system used for electing mayors and police and crime commissioners (PCCs) in England and Wales with First Past the Post (FPTP). The most detailed explanation for the change given so far appeared in a press release last month, which gave five arguments for the switch: (1) SV increases the number of spoilt ballots; (2) it allows ‘loser’ candidates to win; (3) FPTP improves accountability by ‘making it easier for voters to express a clear choice’; (4) FPTP ‘is the world’s most widely used electoral system’; and (5) SV is ‘an anomaly’ and ‘out of step with other elections in England’. In the written statement that first trailed the proposals, Home Secretary Priti Patel also said (6) that the change ‘reflects that transferable voting systems were rejected by the British people in the 2011 nationwide referendum’. Some of these arguments were repeated, though in less detail, when the matter was considered at the Committee Stage of the Commons bill’s scrutiny earlier this week.

This post assesses the government’s claims in turn. Some have merit, but important counterarguments are ignored. Voting systems should be treated with care: it is all too easy for those in power to manipulate them to their own advantage. Ministers have not adequately made the case that the change will be good for democracy.

1. Does Supplementary Vote lead to more spoilt ballots

Elections using SV in the UK typically see higher numbers of spoilt ballots than do those using FPTP. Electoral Commission data shows that 0.8% of ballots cast in local council elections in May – under FPTP – were rejected. That compares to over 2% in most elections under SV. In PCC elections, they stood at 2.9% this year, down from 3.4% in 2016. In London mayoral elections, they have ranged between 1.8% in 2012 and 4.3% this year. They have generally been around 2% in other combined authority mayoral elections, peaking at 2.2% in 2018.

That SV elections show higher rates of rejected ballots does not mean that SV itself is necessarily the culprit. The jump in such ballots in this year’s London mayoral election points to another factor: ballot paper design. The Electoral Commission notes the use in that contest of a new, untested design, split over two columns because of the large number of candidates, which voters described as ‘being confusing/complex’. Poor design similarly led to more spoilt ballots in the 2007 Scottish local and parliamentary elections. Another factor may be deliberate spoiling of ballot papers: the Electoral Commission noted anecdotal evidence of this in the 2012 PCC elections.

So SV elections do see more spoilt ballots than FPTP elections, but improved ballot paper design – and clearer guidance for voters – might ameliorate the problem.

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